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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Paton v. Niddrie and Benhar Coal Co. (Ltd) [1885] ScotLR 22_345 (14 January 1885) URL: http://www.bailii.org/scot/cases/ScotCS/1885/22SLR0345.html Cite as: [1885] ScotLR 22_345, [1885] SLR 22_345 |
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Page: 345↓
[Sheriff of the Lothians.
Held that an action brought in a Sheriff Court alternatively at common law and under the Employers Liability Act 1880 was competently brought up to the Court of Session by an appeal for jury trial which was not lodged till the fifteenth day after proof had been allowed, the provisions of the Act that an action under it “ may be removed to the Court of Session … in the manner provided by, and subject to the conditions prescribed by, sec. 9 of the Sheriff Courts (Scotland) Act 1877” not having the effect of excluding appeal brought in the ordinary form under the Judicature Act.
The Judicature Act 1825 (6 Geo. IV. c. 120), sec. 40, provides—. … “In all cases originating in the Inferior Courts in which the claim is in amount above forty pounds, as soon as an order or interlocutor allowing a proof has been pronounced in the Inferior Court …. it shall be competent to either of the parties who may conceive that the case ought to be tried by jury to remove the process into the Court of Session.” …
By A. S., 11th July 1828, sec. 5, such proceeding to remove the action must be taken within fifteen days of the interlocutor allowing proof.
The Court of Session Act 1868 (31 and 32 Vict. c. 100), sec. 73, provides—“It shall be lawful, by note of appeal under this Act, to remove to the Court of Session all causes originating in the Inferior Court in which the claim is in amount above forty pounds, at the time and for the purpose and subject to the conditions specified in the 40th section of the Act 6 Geo. IV. c. 120.” …
Robert Paton, miner, Arthur Place, Cowdenbeath, and his wife, Mrs Mary Gray or Paton, raised this action in the Sheriff Court at Edinburgh, against The Niddrie and Benhar Coal Company, for damages for the death of their son Neil Paton, which was occasioned by an accident in the defenders' pits through the alleged fault of the defenders. The pursuers claimed £500 in name of damages and solatium for the death of their son, at common law. Alternatively, the pursuers concluded, under the Employers Liability Act of 1880, for £234, being the alleged amount of three years' earnings of the deceased. The defence was that the action was irrelevant, and that the defenders were not in fault.
On 12th December 1884 the Sheriff-Substitute allowed a proof.
The pursuers, on 27th December 1884, appealed to the Court of Session for jury trial.
The Employers Liability Act 1880 (43 and 44 Vict. c. 42), sec. 6, provides that actions brought under it “shall be brought in a County Court,” which term shall mean with respect to Scotland the Sheriff Court. Sub-sec. 3 provides—“In Scotland any action under this Act may be removed to the Court of Session at the instance of either party, in the manner provided by, and subject to the conditions prescribed by, sec. 9 of the Sheriff Courts (Scotland) Act 1877.”
The Sheriff Courts (Scotland) Act 1877 (40 and 41 Vict. c. 50), sec. 9, provides—“… If a defender shall at any time before an interlocutor closing the record is pronounced in the action, or within six days after such an interlocutor shall have been pronounced, lodge a note in the process in the following or similar terms—that is to say, The defender prays that the process may be transmitted to the Court of Session … it shall be the duty of the Sheriff-Clerk forthwith to transmit the process to the Keeper of Rolls of the First Division of the Court of Session.” …
When the case appeared in the Single Bills, the respondents objected to the appeal as incompetent to bring up an action founded on the Employers Liability Act of 1880, and argued that sec. 6 of that Act provided only one method of removing a case to the Court of Session for jury trial—namely, the manner set forth in sec. 9 of the Sheriff Courts (Scotland) Act of 1877. In the present case the interlocutor closing the record was dated 12th December 1884, and the date of the appeal was 27th December 1884. The note of appeal was thus dated more than six days after the date of the interlocutor closing the record.
Argued for the pursuer—The provisions as to removing contained in sec. 6 of the Employers Liability Act of 1880 were merely permissive
Page: 346↓
(providing that the action “may” be removed), and that there was nothing in the Employers Liability Act to deprive the pursuers of the right of appeal for jury trial under the Judicature Act; the right of appeal therein contained could not be taken away by implication. The Sheriff Court Act of 1877, by sec. 9, gave a right of removal to the defender only, and all that the Employers Liability Act did was to extend that right to either party. It did not follow that the ordinary method of bringing up an action of damages for more than £40 was affected. At advising—
The proceeding, then, contemplated, is the removing a cause from an Inferior to a Superior Court for the purpose of proceeding with it in the Superior Court. It is not therefore in the proper sense of the word an appeal, still it takes the form of an appeal, because in the original Judicature Act 1825 the removal was effected by an advocation, and in the Court of Session Act 1868 the only substitute for the abolition of advocation is a note of appeal. In substance, however, the thing undoubtedly was the removal of the cause from one Court to another for the purpose of its being proceeded with in the Court to which it is removed.
Now, in the Employers Liability Act there is another remedy of the same kind given—that is to say, it is provided that at any time before the closing of the record in an action brought under that statute, or within six days thereafter, either party may remove the cause from the Sheriff Court to the Court of Session by complying with a certain form, which is not identical by any means with the form provided by the Judicature Act, but it has the same effect of removing the process from the one Court to the other with the view of being proceeded with.
The time at which the removal takes place in the one case is different from that in the other, and the conditions under which the case may be removed in the one case and the other are different. The question therefore comes to be, whether in the Employers Liability Act it is intended to substitute the one mode of removal for other, and so imply the abolition of the old mode of removal?
It rather appears to me that this right of removing a cause from an Inferior to a Superior Court, provided by the Judicature Act and continued by the Court of Session Act of 1868, cannot be taken away by implication.
There is nothing inconsistent in the subsistence of both these modes of removing a cause from the one Court to the other. It is to be done at different stages of the process; it is to be done under different conditions and in a different manner; and if in the present case the appellants missed their opportunity of removing the cause from the Sheriff Court, under the Employers Liability Act, before the record was closed, or within six days thereafter, there is nothing to take away from them their other remedy of removing the cause as soon as an order for proof has been pronounced. I think, therefore, that this appeal is competent.
The Court repelled the objection to the competency of the appeal, and ordered issues to be lodged.
Counsel for Pursuers (Appellants) — Hay. Agent— A. Menzies, S.S.C.
Counsel for Defenders (Respondents)— Ure. Agents— Dove & Lockhart, S.S.C.
